Alley in Pisa, Italy

by Lars Kotthoff

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This question is similar to my other question however this has to do with Logos.

If I am in public (on public property) and take a photo that has a recognizable company logo in it what rights do I have to reuse the photo with the logo in it? (Commercially via the web.) I know this answer could depend on the way the logo is used. If the logo is used in a positive light how does that change if used in a negative light?

One example would be this:

I have a photo of two trucks both with logos of ice cream companies. In front of the trucks is an ambulance (with its lights on). The placement of the trucks with the ambulance is amusing as it indicates eating ice cream can get you a visit from an ambulance. I would use the photo in a amusing way though I know if looked at wrong it can be taken in a negative way.

Notes: I am based in Colorado, USA but will accept answers that can apply worldwide. Also I know a lawyer could provide a definitive answer, however, I am looking for a general idea.

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Logos are non-nos. –  Russell McMahon Mar 15 '12 at 5:06

2 Answers 2

up vote 8 down vote accepted

Trademarks can be used to describe the thing they name by people other than the trademark owner. That is, you don't have to say "that annual 26.2 mile race in the capital of Massachusetts" even though the Boston Athletic Association controls the "Boston Marathon" trademark. Photographs of things with logos on them can be analogous — you may take a photo of a Starbucks sign. You can't, however, try to mislead coffee customers with your photo.

Remember, trademark laws are consumer protection laws. They're there to prevent fraud. They are not intended as a way for people to monetize phrases or to take control of a portion of the public sphere.

Limiting photographs just because they happen to have logos would have a chilling effect on free speech and be directly contradictory to the First Amendment.

In your particular case, your photograph is a commentary on the product — as you describe it, the juxtaposition of the ambulance and the ice cream store reflects on the health of the ice cream sold — this is clearly a speech issue, and while I am not a lawyer it is my opinion as a citizen that you have a very strong free speech argument. There are McDonald's trademarks all over the film Super Size Me, and the company can't be very happy about it, but that's okay. If, on the other hand, you're trying to sell a photograph specifically by taking advantage of the familiarity of a company's trademark, that's probably not okay.

Stock photos are a special case, because a) the photos are likely to be used commercially, b) customers want generic so other logos don't confuse the message, and c) the agencies probably over-paranoid and not interested in getting in a lawsuit over your free speech rights.

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You have every right to take pictures in a public place. You can sell your images as artwork even if they contained logos. However, if you want to use them in advertising, that's a very different thing. So when you say you want to use them commercially, it depends on the use.

Stock photo companies prohibit images that contain trademarks and logos. There must be a good reason for that. I would imagine if you attempted to sell images containing a logo you would be inviting a lawsuit.

"Logos, trademarks, company names, and product names are not acceptable and must be removed from all images uploaded to iStock"

See Rock & Roll Hall of Fame & Museum v. Gentile Prods where a photographer was sued after using an image of a building. The judge rules in favor of the photographer, not because commercial use of photos of trademarks was allowable, but more because the plaintiff couldn't demonstrate the building was a defendable trademark in the first place.

You might win an eventual lawsuit, but you'd very possibly get an injunction and have to go through a long ordeal.

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